IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of:

MIGUEL ANTHONY HERNANDEZ, Petitioner/Appellant,

v.

LINDSEY MARIE ATHEY, Respondent/Appellee.

No. 1 CA-CV 22-0660 FC

Appeal from the Superior Court in Maricopa County

No. FC2011-002285

The Honorable Glenn A. Allen, Judge

DISMISSED

COUNSEL

Cantor Law Group PLLC, Phoenix

By Nicholas Boca, Amanda Szpakowski

Counsel for Petitioner/Appellant

Schmillen Law Firm PLLC, Scottsdale

By James R. Schmillen, Erica Leavitt

Counsel for Respondent/Appellee

FILED 12-21-2023
HERNANDEZ v. ATHEY

Opinion of the Court

2

OPINION

Presiding Judge James B. Morse Jr. delivered the opinion of the Court, in 

which Judge Cynthia J. Bailey and Judge Brian Y. Furuya joined.

M O R S E, Judge:

¶1 This appeal stems from a September 2022 superior court order

modifying parenting time and decision-making authority.1 In its order

resolving those issues, the superior court also determined that Mother was 

entitled to attorney fees incurred for a portion of the litigation and ordered 

Mother to submit a fee application.

2 Pursuant to Arizona Rule of Family 

Law Procedure ("ARFLP" or "Rule") 78(b), the court certified the entire 

September 2022 order, including Mother's entitlement to attorney fees

("entitlement decision"), as a "final judgment" for which there was "no just 

reason for delay." See ARFLP 78(b). Father appealed from the September 

2022 order and raises arguments about the entitlement decision. Because 

an award of attorney fees is a single claim, the superior court improperly 

certified the entitlement decision as a separate appealable order.

DISCUSSION

¶2 Appellate jurisdiction is defined and limited by statute.

Moreno v. Beltran, 250 Ariz. 379, 381, ¶ 4 (App. 2020). If we lack appellate 

jurisdiction, an appeal cannot proceed. Jessicah C. v. Dep't of Child Safety, 

248 Ariz. 203, 205, ¶ 8 (App. 2020).

¶3 We have an independent duty to examine whether 

jurisdiction exists over matters on appeal. Ghadimi v. Soraya, 230 Ariz. 621, 

622, ¶ 7 (App. 2012). "[W]ith certain exceptions, jurisdiction of appeals is 

limited to final judgments which dispose of all claims and all parties. Public 

1 We have addressed Father's other arguments in a separate 

unpublished memorandum decision issued simultaneously with this 

opinion. See Hernandez v. Athey, 1 CA-CV 22-0660 FC (Ariz. App. Dec. 21,

2023) (mem. decision); Ariz. R. Sup. Ct. 111(b), (h).

2 The record on appeal does not include any judgment as to all claims, 

issues, and parties. 
HERNANDEZ v. ATHEY

Opinion of the Court

3

policy is against deciding cases piecemeal." Musa v. Adrian, 130 Ariz. 311, 

312 (1981). 

¶4 One such exception is Rule 78(b), which provides for an

appealable judgment before "all of the claims pending before the court have 

been resolved," Natale v. Natale, 234 Ariz. 507, 509, ¶ 5 (App. 2014), if "the 

court expressly determines there is no just reason for delay and recites that 

the judgment is entered under" ARFLP 78(b). 

¶5 But Rule 78(b) certification is improper for an unresolved or 

partially resolved claim. See In re Marriage of Chapman, 251 Ariz. 40, 43, ¶ 10 

(App. 2021) ("[T]he inclusion of Rule 78 language alone does not make a 

judgment final and appealable; 'the certification also must be substantively 

warranted.'" (quoting Sw. Gas Corp. v. Irwin, 229 Ariz. 198, 202, ¶ 12 (App. 

2012))); see also Gold v. Helvetica Servicing, Inc., 229 Ariz. 328, 333, ¶ 28 (App. 

2012) ("A trial court's [Ariz. R. Civ. P.] 54(b) determination will not render 

an unadjudicated claim appealable.").3 "[A] claim is separable from others 

remaining to be adjudicated when the nature of the claim already 

determined is 'such that no appellate court would have to decide the same 

issues more than once even if there are subsequent appeals.'" Cont'l Cas. v. 

Superior Court, 130 Ariz. 189, 191 (1981) (quoting Curtiss-Wright Corp. v. Gen.

Elec. Co., 446 U.S. 1, 8 (1980)).

¶6 In several memorandum decisions, our Court has found we 

lack appellate jurisdiction over an award of attorney fees alone despite a 

Rule 78(b) certification of the entitlement decision. See Milham v. Milham, 1 

CA-CV 21-0581 FC, 2022 WL 1801049, at *1, ¶ 6 (Ariz. App. June 2, 2022)

(mem. decision) ("Husband's notice of appeal is premature and a nullity 

because he filed it before the superior court entered its order resolving the 

attorneys' fees award."); Moore v. Moore, 1 CA-CV 18-0786 FC, 2019 WL 

4667528, at *3, ¶ 14 (Ariz. App. Sept. 24, 2019) (mem. decision) (finding 

appellant filed his appeal after judgment on the petition but before 

judgment on the attorney fees and the court was without jurisdiction over 

the fees issue); Woehler v. Stough, 1 CA-CV 17-0264 FC, 2018 WL 1417457, at 

*3, ¶ 11 (Ariz. App. Mar. 22, 2018) (mem. decision) ("Husband's notice of 

appeal relating to Wife's attorneys' fees was premature."); McManus v. 

Hagen, 2 CA-CV 2016-0166, 2017 WL 912041, at *2, ¶ 6 (Ariz. App. Mar. 8, 

2017) (mem. decision) ("McManus did not file another amended notice after 

the entry of final judgment. Accordingly, McManus's premature notice of 

appeal was a nullity over which we lack jurisdiction."); Grubb v. Thrailkill, 1 

3 See Natale, 234 Ariz. at 510, ¶ 11 n.2 (noting that cases interpreting 

Ariz. R. Civ. P. 54(b) also apply to Rule 78(b)).
HERNANDEZ v. ATHEY

Opinion of the Court

4

CA-CV 15-0761 FC, 2016 WL 4894914, at *3, ¶ 10 (Ariz. App. Sept. 15, 2016)

(mem. decision) (finding the court lacked jurisdiction to consider the 

attorney-fees issue after the appealed order resolved only the entitlement 

to attorney fees). Those cases correctly determined that we lacked appellate 

jurisdiction but failed to address the Rule 78(b) certification's validity.

¶7 As with Ariz. R. Civ. P. 54(b), Rule 78(b) allows "an 

accommodation between the policy against piecemeal appeals and the 

problems that have arisen under the liberalized joinder of claims" in one 

suit. Cont'l Cas., 130 Ariz. at 191 (cleaned up) (quoting Stevens v. Mehagian's 

Home Furnishings, Inc., 90 Ariz. 42, 44 (1961)). Although Rule 78(b) allows 

the court to certify fully resolved claims for appeal when other claims 

remain unresolved, Rule 78(b) does not permit appeal of an unresolved 

claim. Pursuant to Rule 78(b), a claim for attorney fees is "considered a 

separate claim from the related judgment regarding the merits of the 

action." ARFLP 78(b). Finding a party is entitled to attorney fees, without 

awarding a specific amount, does not allow certification under Rule 78(b) 

because the claim is not fully resolved.

¶8 The entitlement decision can precede the fees award, but they 

remain two components of a single "claim" for attorney fees. See ARFLP

78(e)(2)–(3) (describing a "claim" for fees and requiring supporting fee 

affidavits and a judgment with a fee determination). Until the court makes 

the entitlement decision and awards an amount, the court cannot certify 

any portion of the attorney-fees claim under Rule 78(b). See Ghadimi, 230 

Ariz. at 623–24, ¶ 13 (determining the attorney-fees award is a discretionary 

decision and not a ministerial act that might excuse a premature notice of 

appeal).

¶9 By certifying the attorney-fees claim under Rule 78(b), the 

judgement here improperly bifurcated the entitlement decision from a later 

determination of the fees award. Parties may appeal an award of attorney 

fees only when the entire claim has been resolved. Thus, even though the 

court certified the entitlement decision under Rule 78(b), we lack 

jurisdiction to consider that issue. See In re Marriage of Chapman, 251 Ariz. 

at 43, ¶ 13 (dismissing appeal for lack of jurisdiction despite Rule 78(b) 

certification).
HERNANDEZ v. ATHEY

Opinion of the Court

5

CONCLUSION

¶10 We dismiss Father's appeal of the portion of the court's order

finding Mother was entitled to an attorney-fees award.